Emmerich on Fitness to Practise

Having asked out loud whether anyone could explain a couple of odd FtP decisions, I got this from Nathan Emmerich, offering sociological pop at an answer…

Iain wondered if anyone could explain the morality that underlies a couple of recent Fitness to Practise decisions made by the GMC. Well, more accurately he wondered if anyone could explain the “public perception” or “public confidence” aspect of the GMC’s Fitness to Practice guidelines. Never one to shirk a challenge, I thought I would give it a go…

The first thing to note is that one has to change, or perhaps expand, the terms of the debate. As a discipline applied philosophical bioethics tends to focus on “ethics”, “ethical reasoning” and codified rules over what I (and some others) would call “morality”. For our present purposes the starkest way to express the idea is by appeal to the historical morality of the UK medical profession, which used to be based on the idea of the British gentleman of a certain class and standing (and, obviously, race and gender).

This morality was uncodified – it had no explicit ethics. Indeed, more than this, it was held to be uncodifiable both in principle and as a matter of morality. It was thought it would be wrong to codify gentlemanly (medical) morality as to do so would open the way to, first, individuals who merely followed rules rather than being the correct sort of persons or having the right character. Second, it would lead to people who did not have the right character or standing attempting to second-guess the decisions of medical professionals or gentlemen. Such a thing was, of course, intolerable.

There is no denying that there was a lot wrong with this ‘moral culture’, and a range of factors has been influential in the modification of medical morality from this historical position to the one we have today. However, “medical morality” has vanished completely, indeed, it is impossible for it to do so: the medical profession (indeed any profession or cultural group) has some underlying moral ethos. Some cultures, like modern medicine, may also have explicitly stated ethical codes and guidelines that may be more or less in line with the underlying moral culture. Nevertheless the moral culture itself is not obviated by these codes. Indeed it underpins the existence and application of any such formally stated ethics.

The problem here is that no rule contains the principles of for its own application. When “applying” a rule we must always rely on some unarticulated and, I would argue, unarticulable set of values, form of understanding and embodied cultural (and moral) sense in order to do so “correctly”. This being the case then we might draw a distinction between the moral culture of applied philosophical bioethics and the moral culture of medical practice and, furthermore, between these cultures and the GMC/ MPTS Fitness to Practise hearings. In each case there will be underlying tacit differences that will result in a seemingly objective set of “rules” or “ethics” being articulated in different ways in response to the same case or “set of facts”.

When we reframe morality and ethics in these terms the distinction between what is public and professional and what is private and personal can become blurred. The idea of a medical morality as being based on the morality of gentlemen is one that brooks no distinction whatsoever. If we take the recent history of medicine to have involved a drawing apart of morality and ethics, the forging of a distinction between thick moral culture and thin codified ethics, then we can also think of it as creating the distinction between the medical professional – or the public role of the medical professional – and the private individual, who inhabits that role. Modern medical culture is such that it creates a space where the personal and professional can be distinguished but that is not to say that they are fully distinct, or that it is possible for them to be constituted in this way. (See for example, recent debates about the use of social media by healthcare professionals)

By way of an example, consider the process of becoming a medical professional – something we should consider as involving an apprenticeship to the profession and therefore the (moral) socialisation of medical students. This process cannot be considered as leaving the “private individual” untouched and, indeed, the selection of applicants to medical school involves selecting types of people. Furthermore, contemporary medical education involves a significant amount of characterological education and training. The teaching of medical ethics is, I have argued, related to this aspect of medical education. Whilst medical professionals no longer have to be gentlemen they must have a particular kind moral character. They must be individuals of a certain type or, at least, capable of being such individuals when at work. Outside of split personalities these two ‘personas’ – the public and professional, and the private and the personal – are inevitably interrelated.

Thus, in the cases Iain has discussed, we might suppose that the GMC/ MPTS views the nominally private phenomenon of disregarding the rule of law or of being insufficiently contrite about unavoidable participation in activities contrary to professional duty as being sufficiently concerning to raise questions about their fitness to practise, the fitness of these private individuals to practise as public professionals. Explaining these concerns in terms constrained by the methodology, cultural morality and logic of academic applied ethics is difficult. However these are not the relevant terms. Whilst applied ethics has difficulty in accepting that an individual may face after-effects as a result of being involved in torture, albeit unwillingly, that call their fitness to practise into question it is consistent with the broader logic of morality and character.

One of Iain’s main worries was with public perception and the duty of the GMC/ MPTS to concern themselves with this wider issue. Iain’s construal suggests this is a reactive concern. It suggest if the public perception is (demonstrably) negative then, whether justified or not, the GMC/ MPTS should act to ally their concerns. I would argue that this is an incomplete way to understand this particular aspect of the FtP rules. The GMC/ MPTS’s duty in this regard is prospective. As a (semi) self-regulating profession the GMC/ MPTS is entitled to form (and justify) its own view on whether something, or someone, will undermine the public confidence and trust in doctors. We can argue about whether the views formed are in fact correct and we should not rule out issues of cultural misunderstanding and the misinterpretation of emotional responses. However the function of such powers is to allow the regulation and governance of medicine to encompass more that codified “ethical” concerns and address moral concerns.

Whether or not you are sympathetic to this view might well depend on how you view the social (and socio-logical) institutionalisation of medicine as a profession. If you think that the GMC (and the BMA, the Royal Colleges etc) simply functions to govern practising doctors as individuals then these powers and judgments may well seem illegitimate. However if you think that these institutions are aspects of the medical profession as a community of professionals who are involved (however perfectly or imperfectly) in their own collective self-regulation such powers begin to have greater meaning.

In the former view being a licensed medical professional is a right predicated on qualification and credentials. This right can only be removed in accordance within a codified, legalistic, and “ethical” logic. In the latter view being a medical doctor is a privilege that is granted by the institutions of the medical community which itself is accorded the privilege of being a (semi) self-regulating profession by the wider society in which it exists. Such privileges can be withdrawn on the basis of a collective concern for the integrity of the profession. This includes somewhat vague and imprecise concerns rooted in medical and public morality.

Perhaps one final point is worth making clear. Whilst I have argued against the hegemony of ethics over morality this should not be taken to mean that I am asserting the hegemony of morality over ethics. Rather, I would place them is a dialogical relationship. It is clear that in the past 40 years ethics has done much to alleviate a hegemonic medical morality that was rooted in the wider public morality of the British class system. However it has not done so through rational assertions or by engaging in oppositional argument. Certainly this has been a feature of the past 40 years but it is not the most important one. Rather what has been most significant is that “ethics” – as something similar to what is understood to be ethics by applied philosophical (bio)ethics – has become embedded within the culture, and therefore morality, of medicine and the medical profession.

The success of applied philosophical bioethics as a mode of thought lies in the way it has successfully colonised medical culture. Interestingly in the UK this is largely down to a number of medical professionals and people whom I term insider-outsiders and not outsider (bio)ethicists. David Reubi thinks of this people in terms of an influential bioethical thought collective. However, as such analysis attempt to show, we should remember that however “objective” ethical thinking is always situated in and part of a particular moral culture.